Internet T’s & C’s – do we have a problem?

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Jason Calacanis’s discussion of Facebook’s recent change of T’s and C’s I was touches on a subject that has been bugging me for some time – whether the T’s and C’s we all accept all the time on the web are going to be enforceable and if not what sort of problems the ensuing legal void will cause.

Calacanis states the problem like this:

When faced with a TOS (Terms of Service) or license the world has been trained to hit the word “agree,” and click, click, click until they get to the actual website or software they were trying to get to in the first place.

As I see it, if no-one reads the T’s and C’s and everyone knows that then sooner of later some judge or politician is going to take the view that enforcing them is unfair, or that someone who suffers damages by virtue of inadvertently agreeing to share some data deserves recompense.

If/when that happens many internet companies will be mired in a sea of uncertainty that will make it them more difficult to invest in, operate, grow, IPO or sell.

Calacanis’s solution is for internet companies to be responsible – I’m obviously in favour of that, but there will always be some rotten apples who can’t or won’t self govern themselves and they will inevitably create problems for everyone else.  The alternatives seem to me to be either regulation or industry codes of condunct which are both detailed and policed.

I’m no lawyer, and I’d very be interested to hear if I’m missing something important here.  I suspect I’m not though, and that this is a new legal issue because people are conducting significant business online and sharing information online for the first time in history. 

Nor is it realistic to expect people to read the T’s and C’s they sign up to.  If it comes to that people will just use fewer services. 

As a case in point I downloaded the new Zemanta LiveWriter plugin before I wrote this post and clicked through the license agreement as Calacanis describes above.  If I wasn’t comfortable doing that (and maybe I shouldn’t be) I would have aborted the install.

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  • Dave

    Has anyone tried to simplify this whole T&Cs problem? eg. to simplify each one down to some standard elements? This way it would be possible to speed read T&Cs or to control at a browser level whether the T&Cs on each site you are visiting are OK (to what you have configured as acceptable) or you need to be concerned about any data you create there.

    When I was playing around with Adverter (a firefox add-on to provide some info about adverts on a web page) I also thought about adding some tools to view T&C info in a standardised way. I couldn't find any examples of anyone working on this.

  • Sounds like a good idea Dave. I haven't seen anyone working on it.

  • truthflux

    It presumably creates an even bigger problem for corporations, where each employee could be signing their employer up to a thousand of these things, many stating “may not be used for commercial purposes”.

  • Good point. I wonder if it is clear whether we are accepting on behalf of ourselves as individuals or on behalf of our companies.

  • Nic, in the UK (and Europe for that matter) the rules on data protection are set out in law and are pretty well understood by most internet companies and savvy consumers. The Data Commissioner is in the process of consulting on new data privacy guidelines for online activity, which might be worth keeping an eye on (we are). What goes into the “terms and conditions” (as opposed to the privacy policy) is a decision for each company, but generally most companies take a defensive position and throw in the kitchen sink to be on the safe side. Of course, terms and conditions are also overlayed by consumer protection laws (if selling to the consumer) and other regulation (e.g. consumer credit laws), which already exist for all businesses and would have to be interpreted by the courts. The latter point is important, because if a company purported to do something outrageous in terms and conditions which you clearly would not agree to if you read them properly, the court would be unlikely to enforce. Equally, where a company relies on disclaimers buried in its terms and conditions (e.g. “you should verify this information before acting upon it”), such disclaimers have been found valid by courts in this country. I hope this helps…

  • Thanks Danvers. Very interesting.

  • Nic, in the UK (and Europe for that matter) the rules on data protection are set out in law and are pretty well understood by most internet companies and savvy consumers. The Data Commissioner is in the process of consulting on new data privacy guidelines for online activity, which might be worth keeping an eye on (we are). What goes into the “terms and conditions” (as opposed to the privacy policy) is a decision for each company, but generally most companies take a defensive position and throw in the kitchen sink to be on the safe side. Of course, terms and conditions are also overlayed by consumer protection laws (if selling to the consumer) and other regulation (e.g. consumer credit laws), which already exist for all businesses and would have to be interpreted by the courts. The latter point is important, because if a company purported to do something outrageous in terms and conditions which you clearly would not agree to if you read them properly, the court would be unlikely to enforce. Equally, where a company relies on disclaimers buried in its terms and conditions (e.g. “you should verify this information before acting upon it”), such disclaimers have been found valid by courts in this country. I hope this helps…

  • Thanks Danvers. Very interesting.